No. 85-371 INTHE SUPREKE COURT OF TEE STATE OF MONTANA 1985

LLOS PARKER, Plaintiff and Appellant,

WALKER TEN EYCK KEED, 111,s.r:d RARBARA EREWSTER, Cefendants and P-espcndents.

APPEAL E'RGM: Dj.str.ict Court of theEighteenth JudicialDistrict, - and fortheCounty of Gallatin, The Honorable Thomas Olson, Zudge presiding.
COUNSEL OF RECORD:
For AppeI.

### Iarit: Nash &

### Nash; DonaldNash, 

### Bozeman, filantana

For Respondent: Goetz, Kadden & Dunn; James H. Goetz, Eczeman, Kontana

- -- . .- -. Submitted on Briefs: Oct. 25, 1985 Decided: January 27, 1986

Filed:

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### ClerkMr. Justice William E. Hunt, Sr., d.el.iveredthe Opinion 

### of the Court.
Parker appeals an order of the Gallatin County District Court d-enying Parker's motion for summary judgment and granting Weed

### 's and Erewster

### 's motion for summary judgment. Reversed and remand-edwith instructions. The sole issue
on appeal is whether a right of first refusal violates the Nontana rule against perpetuities, SS 70-1-40', -408, MCA. The facts of this case are not in dispute. On April 19, 1984, Parker signed a document entitled "First Right of Refusal. " Parker was designated "GRANTORu and Weed and Brewsterwere designated "GRANTEES." The agreement contained the following pertinent statements: GRANTOR agrees not tc sell,transfer or assign all or any part of their interest in 

### the above-described real estate (to other than his children or grandchildren) unless such interest shall have been first offered to GRANTEES for sale and purchase by them in accordance with the followingprovisions: (a) 

### GRANTOR shall first offer to sell the above-described real estate tc GRANTEES at the same price and upcn 

### the same terms and conditions as would govern upon a transfer to a third party

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(d) This First Right of Refusal is binding upon the heirs, personal representatives, zdministrators,successors, and assigns of each of the parties hereto. (including any children or grandchildren Transferees of the Gramtor.)

'Material in parenthesis interlineated in handwriting in original document.

### l ICeed and Erewster recorded this agreement a.t the Gallatin County Clerk and Recorder's Office on April 23,
Gn August 3 1984, Parker filed a conplaint against Weed and Erewster seeking a declaratory judgment voiding the coritract between the parties which contained the right 

### offirst refusal alleging the contractviolat-edthe rule zgainst perpetuities. On February 6, 1985, Parker filed a motion 

### For summary judgment. On March I.].,1385,Erewster and Weed also filed a motion for summary judgment. The issueswere briefed 

### by both parties, and onKarch 15, 1985,a hearing was hel-d. On Yay 30, 1985, the Cistrict Court issued en order cjrantirg Weed's and Erewster's motion for summary judgment. It held that the right of first refusal was not a property interest so the rule against perpetuities did not apply to the preemption agreement. 

### We faced z nearly identical situation in the case of Hardy v. Krutzfeldt (Mont. 1983), 672 P.2d 274, 40 St.Rep. 1823. In that case,Hardy sought a declaratory judgment that
a preemptive clause was invalid as an unreasonable restraint
cn alienation. The Cistrict Court granted Krutzfeldt's motion for suFmary judgment and Fardy appealed. We held that the facts 

### or the case presented no justiciable controversy
overwhich the judicizlpower todetermine real controversies extended. 

### As we stated in Ezrdy: - The only thing before this Court in this case is a difference 

### of opj-ninnamong lawyers on the legal effect of the preemptive first refusal clause. We dc not have before us any litigants involved in an actual controversy who are deprived of 

### a. property right in seeking redress. Our decision here will not affect ariy party to the contract directly, because cn this record there has not been any intent by a.ny party to sell property outside the preemptive clause, nor any third party seeking to be relieved from thepreemptive clause. Har2y, 672 P.2d at 276. In the instant case, Parker sought a decl-aratory judgmelit under the UniforrDeclaratory Judgments Act that the right 

### of first refusal was invalid a violation of the rule against perpetuities. The District Court granted Weed's andBrewster's rnoti.cn 

### for summary judgment a~d Parker appea-led. As in Hardy, the record in the instant case discloses no pending sale cr offer for sa!.e, or purchase or offer t-o purchase the underlying property. No third party isbefore
us challenging the clause's application tohim. Instead, we zrebeing asked torender an advisory opinion. Our reasoning inHardy applies with equal force tothis appeal.. 

# . No litigant before us is in immediate danger cf sustaining direct r from the preemptive clause. Therefore we do not have a justiciable controversy over which the judicial power to deternine real ccntroversies may be exercised. Broad language intheUniform Declaratory Judgments Act, section 27-8-2101, et seq., MCA, may not be used as a platform for courts in this state to plunge into indefjnite amorphous ponds of contract interpretation. Hardy, 672 P.2d at276. Therefore, we reverse the order of the Cistrict Court granting respondents' motion for summary judgment to the extent that it may be c~nstrued todetermine the rights of thepartiesunder theagreement containing theright of first irefusal. The cause is remanded to the Oistrict Court with instructions todismisswithout pr

hie Concur:

# / Justices